Tribunal rules police acted unlawfully by ‘spying’ on journalists

The IPT was examining a complaint by two Northern Ireland journalists over whether police used “intrusive surveillance powers” against them.

The journalists, Trevor Birney and Barry McCaffrey, were arrested in 2018 in connection to their work investigating the 1994 Loughinisland massacre.

The pair filed a complaint with the IPT after the Divisional Court in Belfast ruled the 2018 search warrants and arrests were unlawful and there was no overriding requirement in the public interest which could have justified an interference with the protection of journalistic sources.

The IPT has now ordered the Police Service of Northern Ireland (PSNI) to pay damages to the journalists for unlawful intrusion – the first time that the Tribunal has made such an order.

Amnesty International described it as “a landmark case for press freedom”.

Following the judgment, PSNI Chief Constable Jon Boutcher  accepted that “due consideration was not given to whether there was an overriding public interest in interfering with journalistic sources before authorising surveillance”.

Mr McCaffrey and Mr Birney had produced a documentary film entitled ‘No Stone Unturned’ about the murder of six unarmed men by members of the Ulster Volunteer Force at the Heights Bar in Loughinisland, County Down on June 18, 1994.

The IPT heard that when they were making the film, they “met on a number of occasions” with the Police Ombudsman for Northern Ireland, which was carrying out an investigation into the Loughinisland murders.

PONI’s report was published on June 10, 2016. One of the findings in the report was that collusion between the Royal Ulster Constabulary and the Ulster Volunteer Force was a “significant feature of the murders”. It concluded that the investigation into the murders had been “undermined by a wish to protect informers”, even if they had been involved in committing the murders.

Before the film was released in the UK, members of PONI watched the film. They became aware that the film included two documents that it had disclosed.

The then chief constable of the PSNI commissioned Durham Constabulary to investigate what appeared to be the leaking of those two documents (Operation Yurta). A search warrant of the homes and business premises of the journalists was authorised.

The written judgment describes former PSNI Chief Constable Sir George Hamilton’s decision to authorise the directed surveillance operation as “unlawful at common law” and that it violated the European Convention on Human Rights (ECHR) and the Human Rights Act 1998.

The tribunal judges ruled that the former chief constable had “failed to meet the legal standard necessary to justify spying on journalists and he had neglected the need for heightened scrutiny of surveillance applications in cases involving journalists”.

The actions of police when mounting the covert sting operation were also disproportionate and undermined the domestic and international protections available for the media,” the ruling said.

Further disclosures at the tribunal revealed that the Metropolitan Police Service (MPS), again acting on behalf of the PSNI, had “unlawfully obtained” telephone data belonging to Mr McCaffrey and the then BBC journalist Vincent Kearney in 2012. This illegally obtained data was “subsequently and unlawfully shared” with the PSNI and Durham Constabulary when Mr Birney and Mr McCaffrey were arrested, the IPT found.

The IPT ruled that the police acted unlawfully and breached the human rights of the two journalists.

Commenting on the judgmentMr Boutcher said: “I accept the Investigatory Powers Tribunal’s judgment that due consideration was not given to whether there was an overriding public interest in interfering with journalistic sources before authorising surveillance, which importantly, although it was not directed toward the journalists Mr McCaffrey and Mr Birney, it did impact them in 2018.

“This was one of a number of difficult decisions on a complex and fast moving day for policing in Northern Ireland involving balancing competing interests at pace.

“Separately the Tribunal found that although officers complied with UK law and procedure at the time, a 2013 authorisation for communications data was a breach of our human rights obligations. I am pleased that the Tribunal found officers acted in good faith.

“Significant changes have already been made since these issues occurred, with the role of the Investigatory Powers Commissioners’ in authorising communications data requests and the Judicial Commissioners in cases involving those who handle confidential information.

“This is a detailed judgment and I will take time to consider and reflect on it and along with the findings of the McCullough Review in due course, to consider what further steps we can take.

“I am committed to ensuring that the PSNI use the powers available to us in a way that is lawful, proportionate and accountable.”

The Northern Ireland Policing Board chair Mukesh Sharma said: “The Policing Board will consider the findings of the Judgment in the McCaffrey/Birney (IPT case and discuss with the chief constable at the earliest opportunity.

“It was as a result of the Board’s serious concerns regarding this IPT case, that a report was requested from the chief constable regarding the use of surveillance on journalists and lawyers.

“The subsequent establishment of the independent McCullough Review by the chief constable was designed to ensure full transparency on the use of surveillance by the police in the period from 2011 to date.

“The Board has asked the chief constable for the McCullough report to be provided by March 31, 2025.”

Amnesty International declared the judgment a “landmark case” after the five-year investigation by the IPT ruled the PSNI and MPS “unlawfully spied on the journalists in a bid to uncover their sources”.

It added: “The Tribunal found that the PSNI had repeatedly acted unlawfully, in breach of the European Convention of Human Rights and the Human Rights Act 1998.”

Patrick Corrigan, Amnesty International’s Northern Ireland Director said: “This is a landmark case for press freedom.

“The right of journalists to protect their sources is a cornerstone of a free society, and the PSNI saw fit to ride roughshod over every human rights safeguard designed to protect that right.

“The revelation via the Tribunal that the PSNI spied on staff from the Office of the Police Ombudsman – the statutory body which investigates police wrongdoing – should worry everyone who cares about policing and police oversight in Northern Ireland.

“The truth has had to be dragged kicking and screaming into the light, and today’s judgment is testament to the tenacity and determination shown by Trevor Birney and Barry McCaffrey.

“Accountability must follow culpability and we now need cast-iron safeguards to prevent the PSNI from further abuse of covert surveillance powers against journalists and others in Northern Ireland. There can be no recurrence of the unlawful practices which have seen the police treat press freedom with utter contempt.

“While the police saw fit to arrest journalists exposing police collusion in protecting the paramilitary killers of six men in the village of Loughinisland in June 1994, 20 years on they have still arrested no one for those murders. Our thoughts are with the bereaved families on this day.”